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H-1B Transfer

H-1B Transfer Overview

H-1B transfer or change of H-1B employer or changing H-1B job is general permissible.  Generally, H-1B visa is employer-specific, upon approval of an H-1B visa and the commencement of the H-1B employment, the H-1B worker is authorized to work for only the H-1B employer who petitioned for the visa.  In any event, if the H-1B worker wishes to work for another employer, another company or to change H-1B job, an H-1B transfer petition should be filed.

Cap issues for H-1B transfer

When you consider doing a H-1B transfer, the issues of whether a new H-1B petition is counted against the current H-1B cap depends on whether the initial H-1B petition was cap-subject.  If the petition filed by the previous H-1B employer has already been counted against the cap, a petition for sequential H-1B employer filed by a new employer will not be counted against the H-1B cap.  In that case,  a new H-1B employer may still be approved even if the cap has been exhausted at the time of the new H-1B filing.

Example 1:
Employer A – an IT firm petitioned an H-1B visa for a H-1B Employee.  The petition was filed timely and counted against the 65,000 H-1B cap.  Three years later H-1B Employee wants to work for  another company with Employer B, another private IT firm.  At the time of filing this new H-1B petition, the H-1B cap has been used up. Nevetheless, because H-1B Employee previous employer (Employer A) was counted against the cap, Employer B can file the new H-1B petition  anytime during the year and will not be subject to the H-1B cap.

Example 2:
Employer A is a cap-exempt organization and Employer B is a non-cap-exempt employer, then H-1B Employee will be subject to the H-1B numerical limitation (H-1B cap) and the new H-1B petition filed by Employer B will not be adjudicated unless a cap number is available to H-1B Employee at the time of filing the new H-1B petition.

H-1B Portability: H1B Transfer from previous H-1B employer to a new H-1B employer

Under the “Portability Provisions” issued in 2000, a H-1B worker who was previously issued an H-1B visa is allowed to begin working for a new H-1B employer as soon as the new employer files an H-1B transfer petition for him/her. To be eligible for a H-1B transfer or to “port” or “transfer” from one employer to another employer, the H-1B worker must:

  1. have been lawfully admitted into the United States.
  2. have the new employer filed a “non-frivolous” petition while the alien was in a period of stay authorized by the Attorney General.
  3. not have been employed without authorization since the last entry to the U.S.

H-1B Transfer for changing H-1B job

Transferring to a new job under the H-1B visa category can be complex and time sensitive.  If you are considering or in the process of renewing or transferring your H-1B visa or plan on changing to another H-1B job, please contact us for a consultation to get yourself ready for the transition.


You may be interested in the following pages:

  • H-1B Specialty Occupation requirements
  • H-1B employee qualifications
  • H-1B Cap
  • F-1 to H-1B
  • H-1B Transfer
  • H-1B Extension

Contact Us

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Cipolla law Group Immigration Law Firm

CHICAGO IMMIGRATION LAWYERS

332 S Michigan Avenue, Suite 1100

Chicago, IL 60604

Phone: +1 773.687.0549
https://www.immigrationvisaus.com

 

 

 

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